Race-Based Hostile Work Environment Claim, Based on Survives Summary Judgment

In Skinner v. American Pollution Control Corp, 2023 WL 186950 (W.D.La. Jan. 13, 2023), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s race-based hostile work environment claim.

This case involves repeated use of the “N word” in the presence of plaintiff, an African American man.

From the decision:

AMPOL also argues that the comments did not affect a term, condition or privilege of Plaintiff’s employment. As indicated above, the “totality of the employment circumstances” determines whether an environment is objectively hostile.29 Although no single factor is determinative, pertinent considerations are: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance.30 It should be noted that “the test—whether the harassment is severe or pervasive—is stated in the disjunctive.”31 Accordingly, “[a]n egregious, yet isolated, incident can alter the terms, conditions, or privileges of employment and satisfy the fourth element necessary to constitute a hostile work environment.”32 “The inverse is also true: Frequent incidents of harassment, though not severe, can reach the level of ‘pervasive,’ thereby altering the terms, conditions, or privileges of employment such that a hostile work environment exists.”33 Thus, “the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.”34 The Fifth Circuit has further stated that “[t]here is no mathematical formula to determine whether conduct is sufficiently severe or pervasive to establish a hostile-work-environment claim.”35

Numerous courts have found instances where the use of the “N word” itself was sufficient to create a hostile work environment.36 The Fifth Circuit has noted that, “[p]erhaps no single act can more quickly ‘alter the conditions of employment and create an abusive working environment’ than the use of an unambiguously racial epithet such as [the N word].”37 That term has been further described as “a term that sums up … all the bitter years of insult and struggle in America, [a] pure anathema to African-Americans, [and] probably the most offensive word in English.”38

In the instant case, based upon the evidence currently in the record, the Court is unable to determine whether AMPOL knew or should have known of the harassment in question and failed to take prompt remedial action. While the record reflects that AMPOL took action regarding the February 12, 2020 incident, Plaintiff claims there was continuous use of the racial slur after that time and that he reported those incidents to AMPOL and no action was taken. AMPOL alleges it was unaware of any further incidents, and in fact, Mr. Guidry testified that he thought everything was fine between Plaintiff and Duval after that time.

Based on this, the court held that there was a genuine issue of material fact regarding whether defendant “knew or should have known of the harassment in question and failed to take prompt remedial action,” warranting denial of defendant’s motion.

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